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Legal aspects

Prior to the Criminal Code of Queensland coming into effect on 1 January
1901, the common law in Queensland had always upheld the right of a schoolmaster
to administer, under certain conditions, reasonable corporal punishment to
a pupil. The teacher was considered to have the same rights as a parent in
this respect and acted in loco parentis. This principle was clearly
expressed by the Northern Full Court of Queensland in 1894 in the case Smith
v. O'Byrne:

A Schoolmaster may, in respect of school offences, misbehaviour,
disobedience, idleness and the like, lawfully inflict moderate and reasonable
corporal chastisement, commensurate with the offence, upon a scholar capable
of appreciating the punishment1.

Should the punishment of the scholar, however, be regarded by a court to
have been excessive or injurious, then the teacher was deemed to have committed
an assault and was answerable to the law for this offence. In Regina
v. Scott, a case heard before the Supreme Court in 1876, the defendant,
a headmaster, was charged with unlawfully assaulting a pupil by administering
a severe chastisement with a cane. The judge stated that:

The defendant had exceeded that moderation which should guide every
tutor in the treatment of his pupils; but that no grievous bodily harm had
been inflicted... The law is distinct that teachers have not unlimited powers2.

The Criminal Code of Queensland embodied these principles of the common law
in Section 280 (s.280):

It is lawful for a person in the place of a parent or for a schoolmaster
or master to use, by way of correction towards a child, pupil, or apprentice
under his care, such force as is reasonable under the circumstances.

This section, then was a defence for schoolmasters against a charge of assault
described as 'any application of physical force by one person to another by
striking or by touching directly or indirectly without consent'3.

Since s.280 expressly provided for the relationship of teacher and pupil,
it was not necessary in Queensland to apply the doctrine of in loco parentis.
Furthermore, there was a legal precedent which suggested that in circumstances
where serious matters affecting the safety of all the pupils are concerned,
the school teacher had an authority which may override that of the parent.

In Craig v. Frost (1936), a head teacher of a one-teacher school
warned his pupils not to gallop their horses to or from school because a pupil
had earlier been seriously injured in a fall from a horse. The head teacher
subsequently punished a pupil who disobeyed this instruction. In this case,
the magistrate stated that the schoolmaster had authority to administer reasonable
corporal punishment and sometimes it was reasonable in matters of school discipline
to override the authority of the parents4.

In relation to s.280, the courts had to consider two very important questions:
What is reasonable force? What are reasonable circumstances?

In answering these questions, the courts considered the seriousness of the
offence, the situation in which the offence was committed, the instrument
or means of administering corporal punishment, the manner and extent of the
correction, the part of the person's body where the punishment was applied
and the age and physical condition of the child.

Some of the offences which the courts held to warrant corporal punishment
were assaulting or insulting a teacher, persistent disobedience, fighting
in the street, and misconduct in school or when travelling to or from school.

The courts during the nineteenth and the early part of the twentieth centuries
accepted the following severe punishment as being reasonable: four cane strokes
on the backs of the thighs leaving bluish marks (1908) and four or five cane
strokes on a girl's back (1913).

Photograph: Canes were a common instrument
used to instil corporal punishment.

While social attitudes had changed, even as late as a 1959 case, the courts
indicated that they were prepared to leave some measure of discretion to the
teacher with regard to the form of punishment, provided that it was not excessive.
In this case, questions of excessive chastisement, the part of the body where
the punishment was inflicted, and the age and physical condition of the pupil
were raised in the Queensland Full Court. The defendant, an assistant State
school teacher, slapped a boy for gross insolence. The boy was slapped twice
on the face and several times on the shoulder with the open hand causing some
bruising on the shoulder. The stipendiary magistrate dismissed the case as
he believed the punishment was not excessive. The Full Court agreed with this
decision. It believed that, prima facie, the punishment inflicted
by the blows on the head was unreasonable. In this instance, however, the
slaps were not hard blows, were not blows on the ears, and did not cause any
injury. Furthermore, the complainant was a healthy full-grown boy of fifteen5.

In 1976, a magistrate dismissed an assault charge against a high school teacher
who had struck a boy for disrupting the class and made his nose bleed. The
magistrate stated that corporal punishment had been necessary to correct the
behaviour of the boy and that he was not satisfied that the force was excessive6.
Another magistrate in 1977 dismissed, for the same reason, an assault charge
where a primary school teacher had smacked a child on the back with an open
hand because the child had told lies about homework not done7.